05-456. Excepted Service-Appointment for Persons With Disabilities and Career and Career-Conditional Employment

AGENCY:

Office of Personnel Management.

ACTION:

Proposed rule.

SUMMARY:

The Office of Personnel Management (OPM) is proposing changes to existing regulations regarding the excepted appointments of persons with mental retardation, severe physical, and psychiatric disabilities. These changes will provide agencies the authority to determine, on a case-by-case basis, whether these individuals can receive an excepted appointment based solely on medical documentation submitted by the applicant. We also propose to consolidate three excepted appointing authorities for persons with the above disabilities into one authority.

DATES:

We will consider comments received on or before March 14, 2005.

ADDRESSES:

You may submit comments, identified by RIN number, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: [e-mail]. Include “RIN 3206-AK58” in the subject line of the message.
• Fax: [phone].
• Mail: Mark Doboga, Deputy Associate Director for Talent and Capacity Policy, U.S. Office of Personnel Management, Room 6551, 1900 E Street, NW., Washington, DC 20415-9700.
• Hand Delivery/Courier: OPM, Room 6551, 1900 E Street, NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Larry Lorenz by telephone on [phone], by fax on [phone], by TDD on [phone], or by e-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

In February 2001, President George W. Bush introduced the New Freedom Initiative (http://www.whitehouse.gov/​news/​freedominitiative/​freedominitiative.html) to eliminate “the barriers to equality that face many of the 54 million Americans with disabilities.” In so doing, the President stated that persons with disabilities “should have every freedom to pursue careers, integrate into the workforce, and participate as full members in the economic marketplace.”

To further the objectives of the New Freedom Initiative, OPM reviewed the regulations governing the appointment of persons with disabilities to positions in the Federal Government. At present, those regulations permit agencies to make expedited Schedule A “excepted” appointments to persons with disabilities if they have been certified as having mental retardation (as that term is used in Executive Order 12125 dated March 15, 1979), or severe physical or psychiatric disability. However, the certification process is onerous and complicated, involving review by State and/or Federal agencies even where the disability has been clearly diagnosed by a licensed medical authority. After careful consideration of that certification requirement, we propose changing the current regulations to simplify the disability determination process in certain cases, consolidate the three existing Schedule A appointing authorities for persons with mental retardation, severe physical, or psychiatric disabilities, and thereby streamline the Federal hiring process for these deserving individuals.

OPM currently provides agencies three separate appointing authorities for individuals with mental retardation, severe physical, and psychiatric disabilities. The provisions for each authority were authorized under Executive Order (E.O.) 12125, as amended by E.O. 13124, and vary only slightly from one another. The proposed rules standardize and consolidate these provisions into one streamlined appointing authority.

In addition, the current regulations specify that, for purposes of these appointments, the certification that a person with a severe physical disability or a person with a psychiatric disability is disabled and likely to successfully perform duties of the job for which he or she is applying (including Federal jobs) may be provided only by the Department of Veterans Affairs (VA) or an applicable State Vocational Rehabilitation Agency (SVRA). Similarly, only SVRAs may provide the required certification for a person with mental retardation. Thus, an individual with a disability determination from a Federal agency other than the VA may not use that documentation for purposes of obtaining eligibility for a Schedule A excepted appointment for a Federal job. The proposed rulemaking seeks to remedy this situation by delegating this certification authority to other Federal agencies under certain conditions.

OPM believes the proposed regulations will facilitate the Federal Government's ability to hire persons with disabilities, in furtherance of the President's New Freedom Initiative, introduced in February 2001, which was designed to increase employment opportunities for persons with disabilities. We seek comments on the proposed changes from all interested parties, but especially from agencies on their ability to determine the eligibility of applicants with disabilities for appointment under Schedule A and evaluating these applicants' likelihood of success in a specific job without certification from a state or Veterans Administration vocational rehabilitation counselor.

Proposed Amendments

Under these proposed regulations, one consolidated authority would replace the following:

Schedule A authority § 213.3102(t) for positions when filled by people with mental retardation; Schedule A authority § 213.3102(u) for positions when filled by people with severe physical disabilities; and

Schedule A authority § 213.3102(gg) for positions when filled by people with psychiatric disabilities.

Using the new program, agencies will appoint individuals under § 213.3102(u). The new Schedule A authority contains updated certification procedures, a temporary employment option, and requirements for non-competitive conversion to the competitive service.

Certification Procedures

This proposed rule will allow Federal agencies to certify, then immediately hire, disabled applicants who are likely to succeed as Federal employees.

The proposed certification procedures authorize any Federal agency to certify, on a case-by-case basis, that a particular applicant has provided sufficient evidence of mental retardation, severe physical, or psychiatric disability; such evidence may be certification from the Social Security Administration (SSA) or a licensed physician. In addition, the proposed procedures authorize the agency to determine whether a disabled applicant is likely to successfully perform the job for which he or she is applying. By authorizing agencies to make such certifications on a case-by-case basis, the proposed regulations will eliminate an unnecessary burden on disabled job applicants as well as potentially duplicative certification procedures. Agencies will retain the option of requiring VA or SVRA certification of a disabled applicant where the agencies are unable to make a determination based on documentation submitted by the applicant.

To determine whether to certify an individual, Federal agencies would be required to review medical documentation presented by the job applicant, such as a physician's statement or disability documentation from the SSA and/or an appropriate State Disability Determination Services agency (if the severe physical disability is not obvious), and all other relevant evidence needed to determine if the applicant is likely to succeed in the job (e.g., degrees from accredited colleges, work experience, tests, etc.).

Temporary Employment Option

The proposed regulations will retain a temporary employment option as an alternative to the certification procedures described above. Under this option, agencies may offer a Schedule A excepted appointment, without further certification, to people with disabilities who have already demonstrated their ability to perform duties satisfactorily under a temporary appointment.

Requirements for Non-Competitive Conversion

For a person with mental retardation, severe physical, or psychiatric disability, the proposed regulations also provide agencies the discretionary authority to convert such a person non-competitively to the competitive service, upon 2 years of satisfactory service in a Schedule A excepted appointment made under the proposed regulations.

Appointments

The proposed rule contains only one authority, 5 CFR 213.3102(u), for appointments of persons with disabilities. When these regulations become effective, agencies will convert the appointments of individuals currently serving on appointments under the superseded authorities to 5 CFR 213.3102(u). OPM's Central Personnel Data File will continue to retain the legal authority code required by the Guide to Processing Personnel Actions for analysis by disability type.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only certain potential applicants and Federal employees.

Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

List of Subjects in 5 CFR Parts 213 and 315

• Government employees
• Reporting and recordkeeping requirements

Office of Personnel Management.

Kay Coles James,

Director.

Accordingly, OPM proposes to amend 5 CFR parts 213 and 315 as follows:

PART 213—EXCEPTED SERVICE

1. The authority citation for part 213 is revised to read as follows:

Authority: 5 U.S.C. 3161, 3301 and 3302; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218. Sec. 213.101 also issued under 5 U.S.C. 2103. Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h), and 8456; E.O. 13318, 47 FR 22931, 3 CFR 1982 Comp., p. 185; 38 U.S.C. 4301 et seq.; Pub. L. 105-339, 112 Stat 3182-83; and E.O. 13162.

2. Amend § 213.3102 by removing and reserving paragraphs (t) and (gg), and by revising paragraph (u) to read as follows:

§ 213.3102

Entire executive civil service.

* * * * *

(u) Appointment for Persons With Disabilities. (1) Purpose. An agency may appoint a person with mental retardation, a person with a severe physical disability, or a person with a psychiatric disability who, on the basis of authoritative medical and other appropriate documentation submitted by or on his or her behalf, has been certified by the appointing agency, another Federal agency, or a State Vocational Rehabilitation Agency (SVRA), as having from one or more of those conditions; and who has:

(i) Demonstrated his or her ability to perform satisfactorily the duties of the position for which he or she is applying by serving previously on a temporary appointment; or

(ii) Been certified by the appointing agency, another Federal agency, or a State Vocational Rehabilitation Agency (SVRA) as likely to succeed in the performance of the duties of the position for which he or she is applying.

(2) Non-competitive conversion. An agency may non-competitively convert to the competitive service an employee who has completed 2 years of satisfactory service under this authority in accordance with the provisions of Executive Order 12125 as amended by Executive Order 13124 and § 315.709 of this chapter.

* * * * *

PART 315—CAREER AND CAREER-CONDITIONAL EMPLOYMENT

3. The authority citation for part 315 is revised to read as follows:

Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577. 3 CFR, 1954-1958 Comp. p. 218, unless otherwise noted; and E.O. 13162. Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec. 315.603 also issued under 5 U.S.C. 8151. Sec. 315.605 also issued under E.O. 12034, 3 CFR, 1978 Comp. p. 111. Sec. 315.606 also issued under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec. 315.607 also issued under 22 U.S.C. 2506. Sec. 315.608 also issued under E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued under 5 U.S.C. 3304(d). Sec. 315.611 also issued under Section 511, Pub. L. 106-117, 113 Stat. 1575-76. Sec. 315.708 also issued under E.O. 13318. Sec. 315.710 also issued under E.O. 12596, 3 CFR, 1987, Comp. p. 229. Subpart I also issued under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978 Comp. p. 264.

Subpart B—The Career-Conditional Employment System

4. In § 315.201 revise paragraph (b)(1)(xii) to read as follows:

§ 315.201

Service requirement for career tenure.

* * * * *

(b) * * *

(1) * * *

(xii) The date of nontemporary appointment under Schedule A, § 213.3102(u) of this chapter, of a person with mental retardation, a severe physical disability, or a psychiatric disability, provided the employee's appointment is converted to a career or career-conditional appointment under § 315.709;

* * * * *

Subpart G—Conversion to Career or Career-Conditional Employment From Other Types of Employment

5. Revise § 315.709 to read as follows:

§ 315.709

Appointment for Persons With Disabilities.

(a) Coverage. An employee appointed under § 213.3102(u) of this chapter may have his or her appointment converted to a career or career-conditional appointment when he or she:

(1) Completes 2 or more years of satisfactory service, without a break of more than 30 days, under a nontemporary Schedule A appointment;

(2) Is recommended for such conversion by his or her supervisors;

(3) Meets all requirements and conditions governing career and career-conditional appointment except those requirements concerning competitive selection from a register and medical qualifications; and

(4) Is converted without a break in service of one workday.

(b) Tenure on conversion. An employee converted under paragraph (a) of this section becomes:

(1) A career-conditional employee, except as provided in paragraph (b)(2) of this section;

(2) A career employee if he or she has completed 3 years of substantially continuous service in a nontemporary appointment under § 213.3102(u) of this chapter, or has otherwise completed the service requirement for career tenure, or is excepted from it by § 315.201(c).

(c) Acquisition of competitive status. A person whose employment is converted to career or career-conditional employment under this section acquires a competitive status automatically on conversion.